Bond vs. The United States
The US Supreme Court accepted certiorari this week in the case Bond vs. The United States. In 2011 the high court decided, as a preliminary issue in the same case, that petitioner Carole Bond of Pennsylvania had standing to challenge her prosecution under federal law. Bond had been prosecuted in federal court under the Chemical Weapons Convention Implementation Act, which criminalized the use of chemicals as chemical weapons under American law in conjunction with the adoption and implementation under international treaty of the Chemical Weapons Convention.
The facts, which led to Bond’s prosecution, concern her attempt to injure or kill a former friend after the woman was discovered to have had an affair with and to have had a child with Bond’s husband. Bond was a microbiologist and when she decided to harm her former friend, she relied on her professional expertise to employ toxic chemical compounds in her assault. Over a period of three months Bond repeatedly applied two different chemical compounds on the victim’s house and car door handles and mailbox. The victim observed and avoided the chemicals on several occasions. She alerted the local police but the police did not identify the chemicals or find evidence that linked them to Bond. At one point the victim did receive a minor burn on her thumb from contact with the chemicals. A federal investigation by the postal service determined that the substances were toxic chemicals 10-chlorophenoxarsine and potassium dichromate and traced the evidence to Bond. Bond was arrested and prosecuted by federal authorities and eventually pled guilty to violations of the chemical weapons implementation act and was sentenced to six years in prison, although she reserved her right to appeal.
After the Supreme Court decided that Bond had standing to challenge her federal prosecution, her case was remanded to the Third Circuit Court of Appeals. There Bond argued that her case was essentially a local criminal matter appropriately subject to state criminal law relating to assault. Her constitutional claim was that the federal government did not have power to step into the area of state criminal law and to prosecute her under the Chemical Weapons Act.
Bond is not disputing that there are federal crimes, such as an attack on a federal official. But Bond argues that the government must derive its authority in federal criminal law from the substantive federal issue involved. Here the only federal issue was that there was an international treaty and the substantive federal legislation had been enacted to implement the treaty.
Bond argued that the Chemical Weapons legislation was meant to prohibit the use of chemicals in warfare. This would be a legitimate federal purpose as the federal government has authority through the constitutional roles of the executive and congress related to warfare. However, in applying the Chemical Weapons law outside of the context of war in an area of criminal law where the states had traditional authority, Bond argued the prosecution violated the 10th Amendment protection of state authority from encroachment by the federal government.
The Chemical Weapons Act law does not only regulate the type of chemical that are so dangerous that they are only found in military stockpiles. It applies broadly to any chemical that “through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals.”
However, the Act is limited by an exclusion of chemicals that are used for any “peaceful purpose related to an industrial, agricultural, research, medical or pharmaceutical activity or other activity.
Bond claimed that her prosecution under federal law violated the constitution because the facts of her case should not be seen as presenting use of a chemical weapon. Since the government did prosecute her under that theory, Bond argued the federal chemical weapons statute intruded on state authority in its application to her.
The Court of Appeals rejected Bond’s challenge to her prosecution. The Third Circuit found that the fact that Congress had enacted the Chemical Weapons Implementation Act in order to meet the government’s obligations under the treaty was sufficient to confer federal authority. Congress has the authority to enact legislation to implement a valid treaty under the Constitution’s Necessary and Proper Clause. The Third Circuit did not consider there to be limits on that authority once conferred. The third circuit decision raised the question of whether it made sense for such an expansion of federal authority based upon a treaty negotiated with another country, and this was expressly contained in a concurrence, but the Court believed it was bound by an earlier Supreme Court case, Missouri v. Holland from 1920, which stated in dictum that “if [a] treaty is valid there can be no dispute about the validity of the statue [implementing that treaty] under Art 1, Section 8, as a necessary and proper means to execute the powers of the Government.” The Third Circuit concluded that principles of federalism “will ordinarily impose no limitation on Congress’s ability to write laws supporting treaties.”
Dictum is language in an opinion or decision by a court that is not fundamental to the holding of the case. Dictum is not given the weight of precedent, but where the dictum is from a Supreme Court decision lower courts look to the language of the high court for the Court’s reasoning and interpretation.
In fact, there is a split of authorities in the circuit courts of appeal as to whether a valid treaty can expand the federal governments constitutional authority beyond enumerated powers. The Ninth Circuit considered a closely related question of the effect of a treaty’s impact and concluded, that “treaty provisions which create domestic law and have the same effect as legislation must be subject to the same substantive limitations as any other legislation.” The 2nd and 11th circuits have followed Holland, while other circuits not. In addition, Holland was decided in 1920 and more recent judicial trends towards federalism and states rights call in to question the applicability of the language contained in Holland.
The Supreme Court will hear argument on Bond v. the United States later this term.